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Pakistan: Constitutional Amendment to Extend Jurisdiction of Superior Courts to Tribal Areas

(Mar. 3, 2015) On February 20, 2015, Pakistan’s Senate Standing Committee on Law and Justice approved a constitutional amendment that would extend the jurisdiction of the Supreme Court and a High Court to Pakistan’s specially administered tribal regions. (Constitutional Amendment: Senate Body Clears Bill on Tribal People’s Rights, EXPRESS TRIBUNE (Feb. 20, 2015).) The amendment, if passed, repeals clause 7 of article 247 of Pakistan’s Constitution, which currently stipulates that “[n]either the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area … .” (The Constitution of the Islamic Republic of Pakistan (1973, as amended up to Feb. 28, 2012), art. 247(7).)

A copy of the draft amendment, which is available on the Pakistani Senate website, provides a statement of the objective of and reasons for the changes:

Under paragraph (c) of clause (2) of Article 1 of the Constitution the Federally Administered Tribal Areas also constitute the territory of Pakistan. The people of Tribal Areas are therefore entitled to the same protection of fundamental rights as are guaranteed under the Constitution to the people of other parts of the country. By ousting the jurisdiction of the Supreme Court and a High Court, Article 247 (7) acts as a grave impediment in the way of the tribal people in securing their fundamental rights and thereby in their integration and mainstreaming. (Constitution (Amendment) Act, 2014, Senate of Pakistan website.)

The statement also notes that the “Constitutional Amendment Bill seeks to give [the] same protection of fundamental rights and equality before law as is guaranteed to the people of other parts of the country under the Constitution.” (Id.)

On April 4, 2014, the Peshawar High Court advised Pakistan’s Parliament and Federal Government to make “suitable amendments” to article 247(7) so “that the people of FATA [Federally Administered Tribal Areas] could invoke the jurisdiction of this Court or of the Supreme Court in case of infringement of their fundamental rights … .” (Peshawar High Court, W.P No. 1741-P of 2012, Peshawar High Court website.) This decision is currently being appealed to the Supreme Court of Pakistan. (Nasir Iqbal, SC Urged to Extend Superior Courts’ Jurisdiction to Fata [sic], DAWN.COM (Feb. 14, 2015).)

Both the Senate and the provincial assembly of Khyber Pakhtunkhwa have passed resolutions urging the amendment of article 247 of Pakistan’s Constitution. (Resolution Passed to Extend Superior Courts’ Jurisdiction over Fata [sic], DAWN.COM (Oct. 27, 2014).)

The draft constitutional amendment will first be taken up by the Senate for a vote and will then require a two-thirds majority in both houses of Pakistan’s Parliament in order to pass. (The Constitution of the Islamic Republic of Pakistan, art. 239.)